Pretoria - The Oscar Pistorius murder trial halted momentarily on Monday morning when Judge Thokozile Masipa was asked to decide on a proposed media ban on the evidence to be given by Professor Gert Saayman.

As a medical professional and the forensic expert who examined Reeva Steenkamp’s body after she was killed in February last year, he asked that none of his evidence be broadcasted.

However, when the judge gave her ruling, after listening to arguments from Advocate Nick Ferreira (for the broadcast media) and the lawyers before her for the trial, she decided to ban all audio and video broadcasts of Saayman’s testimony, as well as any Twitter updates. The ban has effectively stopped all tweets about this part of the trial.

Ferreira argued that the broadcast media did not seek to broadcast the evidence in any case, but wanted to be able to broadcast a summary of the evidence after the fact insofar as it was not offensive to the concerns of the court.

Arguing for the freedom of expression interest, he said: “It may only be that very little of this witness’s evidence can be broadcasted. It may be that some of it can… [This approach] says that we do not seek for a ban in advance,” Ferreira said.

The argument advanced by Advocate Kenny Oldwage for the defence was that there was no mechanism proposed for deciding which evidence could be shown and which couldn’t.

“What about the dignity of the deceased? What about the dignity of the deceased’s family?” asked Oldwage.

Problematic ruling

Judge Masipa’s ruling is an immediate order, but she has promised to apply her mind and perhaps develop it further at a later time.

The ruling is problematic for a number of reasons. It is quite vague in who and what it bans. Are ordinary members of the public sitting inside the court covered in the same way as journalists?

If tweeting is banned, but live updating not, does it not create a question about the amount of time that must lapse before tweets can be sent? How long should news websites wait before discussing the evidence?

The ruling has introduced the idea of the courts, prosecutors and lawyers being able to pre-censor media reports in future cases.

On a personal note, I was present at the Marikana Commission in Rustenburg when multiple videos of the striking miners getting shot were shown, in full view of grieving family members.

Even though the retired Judge Ian Farlam apologised for the trauma that caused, the images were shown repeatedly afterwards, without an order against the broadcasters present being made.

Imposing media ban

There was no such ban on the media reporting on the trials of the rapists and murderers of Anene Booysen, who arguably met a far more horrifying death than Steenkamp.

There was also no ban on when the evidence was discussed in the Andries Tatane case.

The only time that the courts have issued such a ban before was in the case of the “Modimolle Monster”.

This judgment makes one to ask what is so special about the Pistorius case that such an order could be granted here.

What is very clear is that South African law needs to be developed to be able to keep up with a rapidly changing media landscape.

As it is now, it unfortunately lends itself to undue media censorship.

In the morning, Masipa elaborated further on her judgment against witness photos.

She said that her judgment applied to public figure and private witnesses. There can never be any photos taken of private witnesses, even after they have given testimony.

But the ban on public figure witnesses falls away once they have finished giving testimony, which means that normal rules of court apply.

The press will be permitted to take photos of such people leaving court, for example.

The ban applied for the benefit of witnesses is understandable, given the difficulty that some witnesses who gave testimony in the first week faced after their personal details were revealed in court.

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